Your Thoughts Exactly

11 Democrats voted to confirm Clarence Thomas in 1991?

He was confirmed by a 52-48 margin.

Way to go.

Being first to take me up on my offer, Stu has asked for an analysis of Roe v. Wade. This in part stems from a discussion we had the other week about abortion, Roe, and the Constitution. Looking in the Constitution, Stu could not find from where a protection for abortion came. After explaining the penumbral right to privacy used by Justice Blackmun in Roe, Stu was not satisfied. Neither am I, I replied.

That perhaps is not an accurate assessment of my feelings about Roe.

Roe was not the first to use the Due Process Clauses, and, more specifically, substantive due process, to protect a general right to “privacy.” The Court, in Griswald v. Connecticut, prohibited Connecticut from banning the use or distribution of contraceptives based on a right to privacy not found explicitly in the text of the Constitution, and struck down a similar statute for the same reason in Eisenstadt v. Baird. These cases affirmed the notion that, though no specific language in the Constitution prevents the government from legislating marital relations, some things are so private and personal to warrant protection from government intrusion, and these private affairs are protected by the Due Process Clauses of th 5th and 14th Amendments. (Because the rights protected are substantive and not merely procedural they are termed substantive due process rights). I think this principal is extremely important and central to the foundation of our nation. People cede all sorts of personal rights in order to form functioning governments, but I doubt anyone believed that by voting to ratify the Constitution they were allowing the government to criminalize the way the have sex, or which person in a marriage cleans the dishes after dinner, or how parents must raise their children, or even the appropriate length of hair for individuals. Without a Constitutionally protected realm of privacy, governments could enact all sorts of laws controlling our personal interactions. (Certainly other federal law would prohibit some of this legislation, but that is irrelevant to a discussion on Constitutional protections.)

My dissatisfaction with Roe is that it missed the opportunity to affirm stronger protection to a woman’s right to choose while leaving itself unnecessarily vulnerable to excessive criticism that distracts from the only relevant debate - questions about when life begins and on what our government may rely in determining when life begins. Substantive due process, the doctrine by which courts protect certain fundamental rights unmentioned in the Constitution, is criticized as the evil source of judicial activism because through this method of analysis, the Court announces protected rights that are not specifically granted by the Constitution. Relying on the Equal Protection Clause would have grounded the right to an abortion in the actual language of the Constitution while elevating sex to the status of a suspect classification, providing the ultimate level of judicial scrutiny to cases involving sex discrimination.

(Perhaps the critics of substantive due process are right. But substantive due process was made necessary by the ultimate act of judicial activism in The Slaughterhouse Cases. There, the Supreme Court did not just legislate from the bench – they re-wrote the Constitution. In eviscerating the Privileges and Immunities Clause of the 14th Amendment, the Court effectively erased an important phrase of the Amendment. Since the clause aimed at protecting certain unenumerated fundamental liberties suddenly lost all effect and importance, substantive due process arose to fill the void.)

The Equal Protection Clause, though its enaction certainly was motivated by the desire to afford full legal protection to previously free black persons and newly freed slaves, uses language that affords its protection to all. It reads: “[no state shall] deny to any person within its jurisdiction the equal protection of the laws.” Any person. Congress would have chosen to make this a prohibition against the denial of equal protection based on race, like it did in the 15th Amendment adopted at the same time. However, Congress, in the 15th Amendment, wanted only to grant the right to vote to men of all races, but not to women. Congress did not aim so low in the 14th Amendment, using the language “any person.”

In Roe, the Court could simply have ruled that abortion laws deny women the equal protection of the law. They control only women’s actions, and restrict women’s freedom. The Court should have recognized the long history of sex discrimination, recognized sex as a suspect classification requiring strict scrutiny by the court (laws discriminating on sex are not viewed as skeptically as laws discriminating on race, and are subject to lower judicial scrutiny), and struck abortion regulations as violating the Equal Protection clause because they do not serve a compelling governmental interest, and are not sufficiently narrowly tailored towards achieving that interest.

This approach of course relies on the Court deciding that the protection of an unborn fetus is not a compelling governmental interest. However, strict scrutiny is rarely satisfied, and for it to be passed here would require the adoption of religious beliefs by the judiciary, or at least would require the Court to allow States to legislate religious beliefs. The First Amendment would not allow this.

Grounding the right to an abortion in the Equal Protection Clause would create a much more difficult task for conservative critics of the Court, because they would not have the same lines of attack provided by the use of substantive due process. The Clause is written right there in the Constitution, and it protects all persons. This avoids the “penumbral” rights to privacy found in various, unrelated protections. It would offer a stronger protection that would not have needed to have been divided into trimesters, another aspect of the Roe decision much criticized (and later undone by science and the Court, though viability still remains, and would remain under Equal Protection, an important stage in the debate). This would also focus the debate not on the Court’s jurisprudence, but on whether a fetus is a person deserving Constitutional protections.

So much time and energy is spent defending or criticizing the Court’s analysis and the right to privacy that encompasses abortion, but the crux of the issue is not a legal one at all. It is simply the debate over when life begins. If at conception, and the fetus has rights of its own, there are Constitutional protections in tension between the pregnant woman and the fetus, and these must be sorted out. If not, then abortion simply deals with a woman and her control over her body and her right to access the medical care of her choosing. This is the only relevant discussion. And since the government would have a difficult time grounding a law on a purely religious belief, it would be a difficult debate for anti-abortionists.

I hope this analysis was helpful. Feel free to challenge, debate, question, or ask for analysis of any other area of constitutional law in the comments.

I admit, I have done a poor job posting since the Fall of 2004. Perhaps the election really affected me terribly. Or I am just overworked. Or, more likely, I am just lazy. In any case, this begins a concerted effort to regain my status as a regular blogger. I propose a plan beneficial both to you, the reader, and to me, the law student: I will take the opportunity provided by free blogging to work on my constitutional law skills, while offering you the chance to pick any debate you chose and engage me on it here on this blog.

Use the comments to this post to request a topic - Was Roe v. Wade a good decision from a pro-choice viewpoint? Does the court ruling in Maryland, striking a state law prohibiting same-sex marriage as unconstitutional under the state's constitution, differ from what has been tried or adjudicated in California, Oregon, and Massachussetts? Why in the world would the First Amendment prevent a state from regulating strip clubs? And why doesn't it? Ask any question you would like, and I will provide as thorough of an analysis as I can, offering points on different sides of the debate. Then you can pick it all apart in the comments.

In Battlestar Galactica, the human race is wiped out by cylons in the very first episode of the show. As the remnants of humanity struggle to survive, floating around space being constantly pursued by cylon attackers, a theme has developed throughout the show of whether or not humans deserve to survive, or to be replaced by a newer, more advanced, and much sexier group of beings, the cylons.

The human sentiment aboard the Galactica is one of entitlement; that something about what humans means that they deserve to win against their cylon pursuers. This “something,” is often synonymous with values that human society is built on: democracy, human rights, with some military values mixed in: specifically the ideas of sacrificing your life for a greater cause and never leaving your compatriots behind. The humans of Galactica have filtered the best parts about humanity, and believe that these values and actions are what separate them from cylons, and will somehow save them in the end.

The humans of BSG share values with Western society, particularly the Anglo-American nexus of UK-Australia and of course the U.S. of A. The current administration utilizes the “our values and ideas are stronger than theirs,” argument with regards to Middle Eastern terrorists all the time, to build a contrast between the good (us) and evil (Al Qaeda), and to justify the ongoing effort to spread these Western values to Iraq (through imposing Democratic goverment) and the rest of the region.

But as you know I am not interested in the Middle East. I am more interested in the area of the world that is an actual threat to Western domination of the world. East Asia.

The humans from Battlestar Galactica created the cylons, then forced them to work until they revolted. The West colonized the rest of the world, exploiting the natural resources for their own wealth. In areas of the world like North America and Australia, Westerners slaughtered the inhabitants and infiltrated the land for themselves. In areas like Africa and the Middle East, Westerners fractured long standing empires, dividing the area into regions without consideration for the social structures that preceded their arrival. But in East Asia, societies were able to form into states and maintain links with their pre-colonial past: or reject colonization all together, as in the case of Japan. Eventually, they were able to integrate superior Western technology and political and economic strategies with their own values.

As other regions with different histories and different values become relatively more powerful than the West, what will be our future? Will we peacefully acknowledge the rise of new societies as a natural process, integrating ourselves into whatever new world order arises for the benefit of all humanity? Or will we continue to cling to our past hegemony on the basis that our values are somehow “right,” and that our leadership of the world is “just?”

History tells us that it is very difficult for countries to take their falls gracefully. Recent history does give examples of the contrary, specifically the case of the UK ceding global control to the U.S. peacefully and the relatively peaceful self-imposed breakup of the Soviet empire. In both cases, the realization of leadership struck that maintaining domination would be impossible, as the cost of fighting armed conflict in the twentieth century, and especially the nuclear era.

Yet one of America’s problems remains it’s insistence on its own greatness, to be taken to a form of predestination. Judeo-Christianity, with its ideas of “chosen people,” or a “flock,” with a dichotomy between the saved and the damned, has fused itself into politics, with our current born-again President being the worst example. Mixing war with religious language only leads to critical failure.

So I hope that, when the East does pass the West, they don’t find it necessary to wipe us out for our own good. Let’s start by proving to them we deserve saving by borrowing a little from their culture. Ruling through benevolence, as my man Confucius tells us too.

Any time I have the opportunity to title a post with lyrics from the singer who was voted "Ugliest man on campus" at her college, I just have to run with it. For those not in the know (read: not as cool as me), one of Janis Joplin's more famous songs includes a line "Freedom's just another word..."

Now I have no idea what that song is about, but it was the first thing I thought of when I thought of the word 'freedom'. Does that make me a bad American? Maybe. I probably should have thought about the American Revolution, or eagles soaring, or our flag waving in the wind. America is synonymous with with the word in so many people's minds, so much so that almost everything we do overseas is to promote 'freedom'.

Perhaps America is SO synonymous with freedom in people's minds that they actually mean, 'we're trying to bring America to the Iraqi people' and 'we're attempting to spread American and democracy' and what we actually mean by 'Operation Iraqi Freedom' is actually 'Operation Let's turn Iraq into the 51st state of America'.

Ok, scratch that last one. But really, doesn't it really fit with the whole 'freedom' motif that's been rampaging our nation for the past 4 years? Freedom fries? Freedom toast? Really, aren't these people just losing their minds and latching onto what they think is the most American thing they can think of? I qualified my last statement two paragraphs ago with 'overseas', because really, a lot of what the American government has been doing over the past 4-5 years is to curb our own freedom in the name of stopping terrorism. I'm not going to rehash the Patriot Act or talk about the new unchecked wiretapping program. That those things have happened are not that surprising, and in fact, many people support those programs as important steps in securing our country.

But what I want to know is this: what is America really about? Is America synonymous with 'No Terrorism', or 'Freedom'? Is it ok to get rid of some of our freedom to stop terrorism? Is it ok to get rid of some freedom to win the war on drugs? What about the war on poverty? For so many people, America is supposed to be the land of the free. But if you look at the past decisions that American society has made, it clearly isn't what we stand for. A more accurate synonym for America would be 'wealth'. When you think about it, isn't that what really drove people to immigrate to the US? It was the promise of streets paved with cheese. I mean gold. Often, they were also seeking freedom and avoiding persecution- but why America over other free nations? It's clearly wealth. And wealth is power, by any standard. So is it really a revelation to anyone that America has always tried to be as powerful as possible? Is it a revelation that America doesn't mind curtailing our freedoms in order to stay powerful and wealthy? Of course not.

But I'm not trying to raise an alarm here. By any modern measure, America is a very free country, and I'm not complaining about it. What I'm wondering is- shouldn't we as a collective, try to have some priority other than keeping ourselves in power? As individuals, we try mostly to be satisfied and to be ethical and moral within society. But we are also driven by greed and selfishness in most cases. Why should our society work any different? I don't know. I'd like to refer you to the last post made by our blogging friend at Universal Traveler. To quote:

When you get down to it, though, it's really a negative term. You can't have
freedom without something "bad" to be free from...otherwise the word would
have no meaning.

In many circles, the idea is that your freedom ends when you infringe upon someone else's. What the definition of 'infringe' is depends on who you're talking to, however. But it strikes me as implying that every person needs a bubble, that every person IS a bubble. Doesn't every action involve have consequences for our society and on other people? Obviously, lines need to be drawn, and sometimes it is unreasonable to think that we could live in a society where everyone was truly free to do what they wanted, because as the post also implies, complete freedom requires complete solitude- where you can't infringe on other people.

And because we have to live with other humans, we compromise. Most of the time, these are reasonable constraints on our freedom. I'd like to think that we aren't merely trying to maximize every individual's freedom, or every individual's wealth. I'd like to think that our society is making real progress- that it stands for truth, that it stands for knowledge, or that it stands for progress itself.

Does it even matter? As human individuals, shouldn't we only care that our basic demands for freedom are met? Does it matter that other people's rights are taken away, or that America doesn't really prioritize freedom at all? Should we care that America takes no interest in countries and people that don't affect us?

I don't know. Perhaps the compromise we have in America is as good as it can get, given the fractured nature of its own citizens' priorities. And maybe we are making progress. Science still discovers new things every day, and human rights groups have noted some improvements over the last year. But that's my question to you: What should we be prioritizing?

I have written before on what I call transcendent video games. I am here to write a more in depth ode to one of these games, in honor of my moving to Chicago, and yet another rebirth in that game of games: Super Smash Brothers Melee.

What makes Super Smash Brothers unique? What characteristics make it the greatest fighting game of all time, in a different class then even such legendary games as Street Fighter 2 and Mortal Kombat?

The subtleties are the key. Different moves, combinations of moves different levels, the ability to use items, and the relative strengths and weaknesses of the varying characters allow the smash connoisseur to continually develop and fine tune his craft, always altering strategies, and working to improve on specific facts of the game, be it defense, Smash attacks, use of projectiles, or survival tactics. Execution in Smash is similar to playing a musical instrument: you can work on your straight chops (ability to execute your fundamental moves as fast as possible,) you can work on playing more complex and difficult pieces of music (more complex moves and combinations with higher risk-reward,) or you can work on rhythm and timbre, the way in which you view yourself within your surroundings as part of a fluid and dynamic movement. Within this movement, the ability to express oneself creatively is unlimited. Truly great Smash is artistic.

Of course, Smash is about Art…and hurting people. While there is no goal to a piece of music, there is a goal to Smash, win the game. Deal damage. Knock people out. The balance between artistic expression and individual or team goals blends with Smash as well as any other competition, with the possible exception of basketball. One can focus on victories or artistic expression by playing the game without victory conditions.

Like all great competitions, Smash also provides a forum to humiliate and taunt your opponent, as well as develop synergy with a teammate to make you better in tandem then you can be by yourself. The litany of characters with different moves and styles allows each individual to develop his or her own relationship with the game and its characters. Some are specialists such as myself who has formed an undying bond with Link, as I am drawn to the values of heroism he represents which I look to find in myself. Some of us are drawn to several characters looking to represent the masculine, the feminine, the strong,and the crafty parts of our personality such as Stuart K Lim, and his diverse array of characters: Fox, Peach, Jigglypuff, Donkey Kong, and the Ice Climbers. Others of us choose our characters as representations of the evil in every man’s soul, looking to express our darker side, as with Taylor Peterson and his infatuation with Marth.

Most importantly, Smash brings people together, while allowing one to relax, engage the mind, and forget the stresses and suffering that is regular life. Like my favorite pieces of music, I will be able to play Smash again and again without tiring or succumbing to boredom; at least until the version for Nintendo Revolution comes out.

Playoffs!

With the obligatory Jim Mora reference out of the way, let’s get down to breaking down the divisional playoff round, as well as the results of last week’s games.

Game 1: Washington at Seattle.

The Skins defense won the game against Tampa, despite an absolutely atrocious showing by Mark Brunell, who returns to the Pacific Northwest where he is a legend for leading the greatest football team of all time, the ’91 Washington Huskies. Of course Brunell split time with Billy Joe Hobert, but we will forgive him such a transgression. The toll of a long season has made Brunell less and less effective as the season has gone on, to the point where he is making some awful decisions, such as his interception to Brian Kelly thrown back across the field. While I think Clinton Portis is a stud, Brunell is going to have to pass effectively in order for Washington to have a chance. As good as the Skins D looked, Seattle has by far the best offense in the NFC.

Seattle 31 Washington 13

Game 2: New England at Denver

The Pats win against Jacksonville was not as impressive as the final score looked. New England missed some opportunities, took too long to get moving on offense, and got lucky with regards to fumbles. I was about to worry, but then I remembered that the Patriots never look that impressive in victory. Even when we were winning 20 plus games in a row, we often gave away the impression that we could have played better. In the end what matters is the final score, and that we move to another week.

The key matchup in this game is the Patriots run defense versus the Broncos run offense. We know that Denver will try and run all game. The Pats D has been stiffing the run over the last 8 games, the key to its defensive resurgence (along with forcing a few more turnovers.) I am assuming Bruschi will play this week; Monty Beisel isn’t going to cut it versus the Broncos.

Conversely, I don’t see the Pats being able to run it that much on the Broncos. Brady should be able to move the ball through the air, but needs to be on his A game from the opening snap. The Pats will give up some drives on offense, but need to be able to hold in the red zone and give up field goals, not TDs. Against the Broncos in October, we gave up several long pass plays, got way behind, but rallied and almost tied it up were it not for a key David Givens drop on the final drive (where he dropped it on the 45 and had at least 20 yards of daylight in front of him.)

This game has all the makings of a classic. My guess is that the Pats pull it out with the help of some shady officiating, as the NFL looks to set up the Colts-Pats AFC championship game everyone wants to see. I’ll take it!

New England 24 Denver 20

Game 3: Pittsburgh at Indianapolis

In the Indy Pittsburgh game from earlier this year, I thought that the Steelers D did a reasonably good job of limiting the Colts offense. Conversely, they were totally unable to run against the Colts D. Big Ben, in his first game back, did not perform up to his capabilities. For all the credit the Steelers running offense gets, mostly because everyone is in love with Jerome Bettis and his two yard runs, I think Big Ben is the key to this team, and a much better QB than people give him credit for. He is one of my favorite young players in the league.

That being said, the rest of the Steelers, especially Joey Porter and Hines Ward, are a bunch of punks. They are dirty as well, having taken out both Carson Palmer and Rodney Harrison for the year. After the win over the Bengals, Porter, Ward, and company were bragging about how they knew what it took in the playoffs to win games, while the Bengals had proven that they didn’t. I am sorry, but beating a John Kitna led team doesn’t mean shit. And where do Ward and Porter get off claiming they know how to win in the playoffs when they have been parts of teams that have consistently failed in big games, including, two AFC championship games against the Pats where they were favored. Remember those TJ?

The question for the Colts is, did the last four weeks of half-assing games give Edgerrin James a chance to recharge the batteries? Over the first ten weeks of the season, James’ ability to consistently churn out runs of 4-10 yards made Indianapolis unbeatable. But, as in previous seasons, James began to wear down as the season progressed. If he can be shut down, the Indianapolis offense is manageable, if still dangerous. If James can get yards and first downs consistently, Indy will be very hard to beat.

Indianapolis 30 Pittsburgh 21

Game 4: Carolina at Chicago

Do the Bears have mojo? If so, it will be 12 degrees on Sunday evening. I personally hope they do not have mojo, because by then I will be living in Chicago, and I hope global warming hits that weekend and gives me two straight months of 60 degree weather. This may not happen.

DeShaun Foster will not have the same success against the Bears as he did in the Giants, in fact I would be surprised if he gets more than 50 yards on the ground. This leaves the Panthers offense in the hands of Steve Smith, who will dominate, because he is unstoppable. If I was a Bears fan, I would be worried because Smith is capable of scoring 14 points by himself, meaning the Bears offense needs to put up at least that much to have a chance. A tough ask for the Bears against any D, let alone Carolina’s.

As much as I will be wanting the Bears to win this game (and I will be rooting for them I swear,) it kills me to do this

Carolina 17 Chicago 16

Recently I suggested to my fellow blogmates that we do a 3-part series on American identity- basically what being American means to us personally, to Americans in general, and to the international world.

In my view, to be American is to embrace the paradox that invades American life. It's this paradox that allows us to crown Bill and Melinda Gates as 'People of the Year' in Time magazine for being great philanthropists and entrepreneurs, yet forgetting (or perhaps blocking out) the fact that their wealth may well be causing the problems they are donating charities. I know that Dave might be tempted to say that Bill Gates and Microsoft aren't the Evil Corporation that we sometimes want to make them out to be, but in a world where 1% of the wealthiest people own about 25% of the world's wealth, you can't pretend to be a great philanthropist curing the world's ills just because you donate 1% of your wealth.

And I don't mean to single Bill Gates out here, because indeed, he is one of the 'better' wealthy people out there. But Mr. Gates is simply a microcosm of the larger paradox- that America uses about 50% of the world's resources (and uses them poorly) and doesn't 'give back' that amount- in fact we inflict damage on poor countries, indirectly (through environmental, perversion of human rights), and directly (economic sanctions, war, unfair trade practices). I think as Americans, (and I count myself in this, being an American) we have blinded ourselves to this paradox in order to live our lives without distraction. Simply by being an 'average' American, we're automatically among the wealthiest people in the world. We blame those around us for the troubles going on- the fact that there are hungry people out there, the fact that even within the US, there is homelessness, poverty, injustice- we blame the politicians, we blame the system. But we work within that system, we live within it, play by its rules and yet we condemn it.

Our paradoxical beliefs have Americans supporting a culture of life in some areas of society, like abortion, and supporting a culture of death in the death penalty.
We condemn racism and tyranny, yet we support racist policies and allow our own government to conduct torture and carry out an illegal war in the name of humanity.
We say we're for freedom and equality, but yet purport to love a society where gays are denied equal rights and the prison population is exploding with a mostly African-American populace.
We have Sierra club members who count themselves are environmentalists, yet drive SUVs, don't recycle, and don't care about what happens to the Amazon rainforests.

These are just the most obvious examples. To be American is to be mostly blinded by the fact that we live in the wealthiest and most powerful country in the history of humanity. Our consciousness- what tells us that racism, sexism, equality, and injustice are evil, are blinded by our own desires- our drive for wealth, material, fame, and power- the American dream.

Perhaps to be American is to admit deep inside us, that while we hate the ideas of nuclear warfare, conflict diamonds, and AIDS epidemics, we hate the ideas of being militarily weak, cubic zirconia, and unprofitability even more.

'Proud to be an American' is a misnomer. We're glad to be American, because we're glad to not have been born in abject poverty- to not have died at the age of 3 because of malnutrition. We're glad that we have a chance to play the game of life, and buy our houses. But are we proud? Should that even be allowed? Isn't 'Proud to be an American' akin to saying "I'm proud to have won the lottery?"

And to be American is also to forget about the dilemma that has us spending hundreds of billions of dollars on military spending. Billions more are spent by some of the same corporations lobbying our government officials. Yet we like to think we live in a republic- where everyone's vote counts equally to our elected officials. The reality of American life is that it is indeed controlled by the wealthy and the corporate.

It's that paradox that allows (forces?) us to quiver in fear about terrorism, because our homeland must remain secure. Yet we've spent billions of dollars in the wars in Iraq and Afghanistan, so that we can show our military might and so we won't mind that our government doesn't have universal health care, proper education funding. We don't mind that the government spends those billions of dollars, because the idea of foreigners killing citizens on our soil is abhorrent. But we don't care that many millions more of our citizens die for much more pressing problems.

And we say we are trying to make the world a better place, but we don't bat an eye when the President says that at least 30,000 Iraqi citizens have died. Better them than us, even though the war was supposed to be about Iraqi freedom.

And to return to my Bill Gates example, he's indeed one of the wealthy and corporate. Bill Gates is one of the people in power in the US. He gives money to charities, but he lobbies against corporate and technological taxes. And some of the charitable initiatives are designed to increase power, not distribute it (like donating computers to third world countries, which obviously run Windows, and there's nothing Microsoft would like better than to have be the technological foundation in those countries) By their nature, corporations are there simply to do whatever is necessary for them to create profit- and if that requires changing laws, international or US, to suit their needs, then they'll do that.

I don't want this to be a personal attack on Gates. I don't expect him to donate all his money to non-denominational, non-partisan social welfare charities. I don't expect myself to do that either. But that may simply be because I'm American.

We live in this system, and though there are a few people trying to change it, the most American paradox of all may be this: our capitalist society may be creating almost all the evils that we, as moral actors, are trying to erase.